(C. D. 475)

#### Wheeler & Miller *v.*United States

United States Customs Court, Third Division

(Decided April 22, 1941)

*Lawrence & Tuttle (Charles F. Lawrence*of counsel) for the plaintiffs.

*Charles D. Lawrence,*Acting Assistant Attorney General *(Richard F. Weeks,*special attorney), for the defendant.

Before Cline, Evans, and Keefe, Judges; Keefe, J., not participating

Evans, Judge:

This is an action against the United States wherein the importers seek to recover certain sums of money claimed to have been unlawfully exacted on merchandise imported at the port of San Francisco, wherein duty was collected on cheese assessed for duty under the provisions of paragraph-710 of the Tariff Act of 1930 for cheese and substitutes therefor.

> Pab. 710. Cheese and substitutes therefor, 7 cents per pound, but not less than 35 per centum ad valorem.

The importers claim that the merchandise is dutiable at 5 cents per pound under the Finnish Trade Agreement. The trade agreement is found in T. D. 48554, promulgated October 5, 1936, which modifies the paragraph of the tariff act involved to the extent indicated by the following language:

> 

When the case was called for hearing at San Francisco the importer called a witness connected with the importers herein who had had extended experience in the examination and sale of imported cheese of the type here involved. He gave testimony as follows:

> Q. You are familiar with the cheese imported in this particular entry? — A. Yes, I am.

> *253Q. Will you state how you became familiar with them? — A. From each shipment, we take one loaf of cheese and out it up to see how it exactly appears.

> Q. Did you examine in that manner each type of cheese referred to in this invoice? — A. Each type, yes.

> Q. Have you been dealing in cheese, Mr. Winther, your firm been dealing in it? — A. Yes.

> Q. How long has your firm been dealing in it? — A. This firm has done it for four years, since 1936, January.

> Q. Have you personally dealt in cheese, prior to that time?' — A. Yes, about three or four years before that time.

> Q. Have you become, in the course of your business experience, familiar with what is known as Swiss cheese? — A. In imported Swiss, yes.

> Q. And with Emmenthaler cheese? — A. Yes.

> Q. Are you familiar with the eye formation characteristic of Swiss and Em-menthaler cheeses?' — A. Yes.

> Q. When you examined the cheeses covered by this importation, did you examine them to determine whether the eye formation resembled that had in imported Swiss and Emmenthaler cheeses? — A. Yes, it is the same type of eye formation.

> Q. They did have that characteristic eye formation? — A. Yes.

> Judge Evans. Does that eye formation have any name or any particular designation?

> The Witness. No, it is just called eye formation. You can buy it with large eyes or with small eyes.

> By Mr. Lawrence.

> Q. Can you describe what you understand to be this eye formation characteristic of Swiss or Emmenthaler cheese? — A. Well, it is like an eye hole in the cheese. .

> Q. Is it a particular type of hole? — A. It is a bubble caused by the cooking of the cheese.

> Judge Evans. Gas in the cheese?

> The Witness. Yes, sir.

> By Mr. Lawrence.

> Q. I show you a photograph, Mr. Winther, which appears to represent cheese?— A. Yes.

> Q. In that photograph there are certain holes shown. Do you know if that represents the cheese you imported? — A. Yes, it is the same type of cheese.

> Q. Does that represent all three types you imported in this entry? — A. It varies slightly according to the size of the holes, but they are about the same size as that. •

> ’ Mr. Lawrence. I offer the photograph in evidence as illustrating the cheese imported.

> Mr. Weeks. No objection.

> Judge Evans. It will be marked.

(The photograph referred to was received and marked plaintiff’s illustrative exhibit A, protest 5930-K, of this date.)

> By Mr. Lawrence.

> Q. Is it your opinion, then, Mr. Winther, that these cheeses which you imported do have the eye formation characteristic of Swiss or Emmenthaler cheese?— A. Yes.

> Mr, Lawrence. That’s all.

*254Cross-examination developed nothing contradictory to the direct testimony. Another witness corroborated the first witness and, among other things, said:

> A. All this cheese under consideration have an eye formation similar to Swiss or Emmenthaler type of cheese, which is just a round hole, smooth interior.

Under the record, uncontradicted as is the testimony of plaintiffs' witness as to the character of the eye in the imported cheeses, it appears that it.should have been taxed under the Finnish Trade Agreement at 5 cents per pound. Some point was raised to the effect that the Taffel variety of cheese is not enumerated on the invoice. However, the second witness stated, as above noted, that all these cheeses under consideration have an eye formation similar to the Swiss or Emmenthaler type of cheese. The importer’s attorney called attention to the fact that the appraisers’ answer to the protest, which is timely, indicates that Danish loaf cheese is Taffel.

We sustain the "protest. It is so ordered. ' ■